Justices on the U.S. Supreme Court heard oral arguments this week on a controversial California law that requires non-ambulatory livestock at slaughterhouses to be immediately euthanized and removed from the food supply and, based on their questions, it appears the justices are leaning toward a ruling in favor of the meat industry and the Obama administration.

The 2008 law, which was set aside by a federal judge pending this further legal action, was prompted by whistleblower video at a slaughterhouse that showed non-ambulatory, or “downer” cattle being shocked, kicked and hit with heavy equipment at one California facility. As The Iowa Independent earlier reported, state lawmakers sought to prohibit the sale of meat for human consumption from such animals, and mandated under its penal code that any “downer” livestock be immediately euthanized.

Federal law, however, requires that “downer” livestock be moved away from other animals and inspected. If inspectors find no disease or “adulteration” of the animal, it is allowed to continue through the slaughter process as a part of the food supply.

The National Meat Association, which sued on behalf of the pork industry, has asked SCOTUS to strike down California’s edict on grounds that it over-stepped the federal rule. California’s attorney argued mostly on the grounds of scope and semantics. The latter appeared to be an argument that did not resonate with the Court.

“In other words, you’re saying, ‘Well, just because the federal law says you can, doesn’t mean the state can’t say you can’t,’” noted Chief Justice John Roberts during the testimony of California Asst. Attorney General Susan K. Smith.

When Smith affirmed her argument, Roberts added, “Isn’t the exact flip side of saying … you can’t sell it, is that you can? So when federal law says you can, that preempts the rule from the states that says you can’t.”

Smith was arguing that because California was immediately removing “downer” livestock from the food supply, and the scope of federal law had to do with slaughterhouse operations leading to the food supply, that the state’s requirements remained outside of the scope of what federal authorities had already mapped out as their own territory. In other words, California needed to prove that it’s new law was attempting to “preempt,” or cancel out, existing federal law, which the Constitution holds as the winner in all conflicts.

The meat industry argued that the Federal Meat Inspection Act over-rules any state law that addresses cruelty or humane treatment of livestock slated for slaughter.

The state believes it has the right to explicitly decide what types of livestock can be slaughtered for human consumption, and that its decision in such matters is outside of the federal regulations regarding slaughterhouse operations because it is making its requirement in advance of the federal law. So, if the state decided that no purple hogs or white cows could be slaughtered for human consumption, the state believes the requirement would automatically remove such livestock from jurisdiction by the Federal Meat Inspection Act.

“The federal law doesn’t say you must,” argued Smith. “It does not say that you must sell the meat or you must…”

Justice Antonin Scalia interrupted, saying, “We are not talking about conflict preemption. If it said you must and the state says you can’t, then there would be conflict preemption. But we are talking about express preemption, which says in so many words no additional requirements. And I don’t know how you can get around the fact that this an additional requirement.”

The audio file embedded below provides a portion of the oral arguments in which the justices question Smith:

The brief was filed by the American Center for Law and Justice, a conservative Christian legal outfit founded by televangelist Pat Robertson.

The amicus brief asks the high court to take on a case previously ruled on in Florida that said the new federal health plan’s individual mandate was unconstitutional. the ACLJ called the issue one of “national importance.”

The ACLJ said that the conservative Florida judge that ruled the individual mandate unconstitutional got that part correct, but the judge shouldn’t have singled the individual mandate out. It erred when it didn’t rule the entire new health plan unconstitutional.

“Even though the United States Court of Appeals for the Eleventh Circuit correctly held that the individual mandate is unconstitutional, it wrongly severed only the individual mandate from the ACA,” the ACLJ wrote.”The individual mandate, by the Federal Government’s own admission, is the essential component of the ACA. Should this Court also rule the individual mandate unconstitutional, it should decide to what extent (if any) the individual mandate can be severed from the rest of the ACA.”

The ACLJ was created by Robertson as a response to the American Civil Liberties Union which Robertson said is “hostile to traditional American values.”

The group has been at the heart of many controversial cases including a successful effort in Minnesota’s Anoka-Hennepin School District to drive a transgender teacher out of her job. Though the group maintains that it defends religious liberties, the organization has also assisted local communities in attempting to stop the construction of Muslim mosques.

Jay Sekulow, leader of the ACLJ has made a lot of money in his activism. The Associated Press reports that he and his family have taken in more than $33 million in the last decade.

Bachmann, Kline and Cravaack are signers of the court document along with 102 other Republicans. Rep. Erik Paulsen was the only Republican member of Minnesota’s delegation to decline to sign on.

Here’s the full list:

Paul Broun, Robert Aderholt, Todd Akin, Rodney Alexander, Steve Austria, Michele Bachmann, Spencer Bachus, Joe Barton, Rob Bishop, Diane Black, Marsha Blackburn, Larry Bucshon, Michael Burgess, Dan Burton, Francisco “Quico” Canseco, Eric Cantor, Steve Chabot, Howard Coble, Mike Coffman, Tom Cole, Mike Conaway, Chip Cravaack, Geoff Davis, Scott DesJarlais, Jeff Duncan, Blake Farenthold, Stephen Fincher, Chuck Fleischmann, John Fleming, Bill Flores, Randy Forbes, Virginia Foxx, Trent Franks, Cory Gardner, Scott Garrett, Bob Gibbs, Phil Gingrey, Louie Gohmert, Bob Goodlatte, Tom Graves, Tim Griffin, Michael Grimm, Ralph Hall, Gregg Harper, Andy Harris, Vicky Hartzler, Jeb Hensarling, Wally Herger, Tim Huelskamp, Bill Huizenga, Randy Hultgren, Lynn Jenkins, Bill Johnson, Walter Jones, Jim Jordan, Mike Kelly, Steve King, Adam Kinzinger, John Kline, Doug Lamborn, Jeff Landry, James Lankford, Robert Latta, Billy Long, Cynthia Lummis, Connie Mack, Donald Manzullo, Kenny Marchant, Kevin McCarthy, Michael McCaul, Tom McClintock, Thaddeus McCotter, Cathy McMorris Rodgers, Gary Miller, Jeff Miller, Randy Neugebauer, Alan Nunnelee, Pete Olson, Ron Paul, Steve Pearce, Mike Pence, Joe Pitts, Ted Poe, Mike Pompeo, Bill Posey, Tom Price, Ben Quayle, Reid Ribble, Scott Rigell, Phil Roe, Todd Rokita, Dennis Ross, Ed Royce, Steve Scalise, Jean Schmidt, Adrian Smith, Lamar Smith, Marlin Stutzman, Lee Terry, Tim Walberg, Joe Walsh, Daniel Webster, Lynn Westmoreland, Joe Wilson, and Don Young.

Kagan was a clerk for Marshall.

Franken laid out his argument by noting that numerous cases decided by the current Supreme Court would easily be construed as “activist” according to the Republican definition.

To Sen. Lindsay Graham, R-S.C., he said:

You said there are three things that judges hold to when they’re not activists. You said that they respect precedent. They make narrow decisions and they defer to the political branches, in other words the legislature. And there are a lot of recent cases that we’ve been talking about that instinctively strike me and a lot of other people as falling outside of these three guidelines. And I think that in these cases the Supreme Court was legislating from the bench, which is being activist.

But, Franken said, Brown v. Board of Education was not one of them. And that Thurgood was not an activist judge.

Here’s Franken’s full statement:

“I wish I didn’t have to talk about this issue,” Klobuchar said. “There was a lengthy long article this weekend in one of our major newspapers… talking about, at length, her leg-crossing style. Now I have to say, Mr. President, that I took note of this since it was compared to my leg-crossing style. I have to say I never thought I would be discussing this in this chamber.”

“I don’t think such an article about was ever written about Chief Justice Roberts,” she said, noting how ridiculous an article criticizing Roberts’ leg-crossing at a meeting would be.

“Or was such an article written about Justice Alito? was such an article written by Justice Renquist?” she added.

Here’s video of Klobuchar’s full remarks:

FTN host Bob Schieffer asked, “There’s some interesting speculation that Sen. Amy Klobuchar might be on the list.”

“She’s a really impressive person,” said [CBS News Chief legal correspondent Jan] Crawford. “She’s got prosecutorial experience, and people are always clamoring for someone off the judicial monastery. This court’s got all former federal appeals court judges.

“But she is a Democrat from a state with a Republican governor [Tim Pawlenty], and so if you’re thinking politically about who you’re going to put on the court, and certainly Obama did last time with Sonia Sotomayor, [Klobuchar]‘s not the one you.”

Pawlenty could appoint a Republican to fill Klobuchar’s vacant Senate seat, said Crawford, and the White House wouldn’t want that.

Here’s the full video of the exchange:

Watch CBS News Videos Online

Photo: The UpTake

Anti-abortion group Minnesota Citizens Concerned for Life called on Sens. Amy Klobuchar and Al Franken to reverse their Senate Judiciary Committee votes to approve Supreme Court nominee Sonia Sotomayor on Tuesday. In a letter to the senators, MCCL said that a legal board that Sotomayor once sat on advocated abortion rights.

“While Judge Sotomayor served on the governing board of the Puerto Rican Legal Defense and Education Fund (PRLDEF), the PRLDEF was actively involved in litigation that attempted to advance the abortion agenda,” wrote Scott Fischbach, executive director of MCCL. “In fact, briefs that were filed by PRLDEF at the time urged the Court to regard abortion as a ‘fundamental right.’”

Despite the association outlined by Fischbach, Sotomayor has not yet ruled on an abortion or reproductive rights case.

“Women and unborn children in Minnesota have suffered long enough from the devastating results of Roe v. Wade and deserve a United States Supreme Court that will protect them from an aggressive abortion industry,” Fischbach wrote in the letter to Franken and Klobuchar.

MCCL’s letter is unlikely to change any positions. Both Franken and Klobuchar have indicated their support for reproductive rights as well as reducing the need for abortion through family planning.

(WDCpix.com)

Norm Coleman isn’t the only obstacle to Democrats wielding 60 votes in the U.S. Senate. Edward Kennedy’s battle with brain cancer and Robert Byrd’s staph infection have effectively whittled an otherwise filibuster-proof majority down to 57 — for now.

Byrd, the 91-year-old senator from West Virginia, will be missing from the Senate for at least another week after going to the hospital three weeks ago, Politico reports, and Kennedy’s return isn’t set.

The Massachusetts Democrat is 77 and has served since 1962, a span three years shorter than Byrd’s all-time record for length of service by a U.S. senator.

Their absences, along with that of Coleman challenger Al Franken, have hamstrung Democrats on legislation from the Employee Free Choice Act to healthcare reform, as well as confirmation of a key Justice Department nominee.

Coleman has kept his own hopes of returning to the Senate alive by appealing two decisions against him, first from the State Canvassing Board in January and then by a special election-contest judicial panel in April. The Minnesota Supreme Court could issue a ruling on that second appeal as early as today.

“You know, Neil, if the Minnesota Supreme Court says, ‘You sign the certificate’ — and there’s not an appeal or some other contrary direction from a federal court — you know, that’s my duty.”

Watch it:

Franken’s brief will ask the high court to tell Gov. Tim Pawlenty he must issue an election certificate once the case clears the state’s judicial system, Polinaut predicts. Coleman filed his brief last week and must respond to Franken’s reply by Friday. Oral arguments are set for June 1.

Meanwhile, in Washington last week, the U.S. Senate’s Republican leaders hosted a dinner to raise funds for Coleman’ legal gambit. The event, at Bobby Van’s Grill, benefited the National Republican Senatorial Committee (NRSC) recount fund.

(Bobby Van’s is the kind of place, apparently, where you might see Commerce Secretary Gary Locke at a table with Forest Whitaker, the movie star who also attended the White House Correspondents Dinner on Saturday night.)

Raising money for the Senate rivals got easier after the Federal Election Commission decided that the national parties could set up recount funds independent of their existing accounts and the candidates’ own accounts. That allows eager donors to spread more of their wealth among several accounts.

Watch the dollar limits lift in the fine print from a series of invites.

Nov. 18, 2008:

Feb. 11, 2009:

May 6, 2009:

Finally, here’s a new YouTube video with a Kermit-like frog puppet singing a Norm Coleman version of Billy Joel’s “My Life.” (Joel performed the song in its original version with Elton John at the Xcel Center in St. Paul last week — fan video here).

Excerpts from the interviews linked above:

WINFREY: Is it a day by day thing? 
EDWARDS: Neither one of us is out the door so I guess it’s day by day, but
maybe it’s month by month. 
WINFREY: So you are still living together? 
EDWARDS: Still living together. 
WINFREY: Are you still in love with him? 
EDWARDS: You know, that’s a complicated question. 

REPORTER: But you are saying it may go beyond the state court process.
PAWLENTY: It’s one of many scenarios. So if the question is will you sign the certificate exactly the day the Minnesota Supreme Court decides, well if the court process at the state level is continuing than I am prohibited to sign it. So it is more involved than just that one day that one moment. There are other factors here.

Both answers are made more complicated or involved by presidential politics. The high-office aspirations of John Edwards are now relegated to history by his admitted marital infidelity. Pawlenty’s, however, may get a boost or a dent depending on how he handles his responsibility of issuing an election certificate to either Al Franken or Norm Coleman.